Judd Gregg

Mr. GREGG

Mr. GREGG. Mr. President, on November 7, 2003, the Senate passed the Animal Drug User Fee Act of 2003 which authorizes animal drug user fees. Performance goals, existing outside of the statute, accompany the authorization of animal drug user fees. These goals represent a realistic projection of what the Food and Drug Administration's Center for Veterinary Medicine can accomplish with industry cooperation. The Secretary of Health and Human Services forwarded these goals to the chairmen of the Senate Committee on Health, Education, Labor, and Pensions, and the House Committee on Energy and Commerce, in a document entitled ``Animal Drug User Fee Act Performance Goals and Procedures.'' According to Section 2 of ADUFA, ``The fees authorized by this Act will be dedicated toward expediting the animal drug development process and the review of new and supplemental animal drug applications and investigational animal drug submissions . . . as set forth in the Congressional Record.'' Today, I am submitting for the Record this document, which was forwarded to the Committee on Health, Education, Labor, and Pensions on November 13, 2003, as well as the letter from Secretary Thompson that accompanied the transmittal of this document. I ask unanimous consent they be printed in the Record.

Mr. GREGG

Mr. GREGG. Mr. President, first, I thank the guest Chaplain for that very fine prayer which brings us back to reality in a way that is appropriate. There has been a tremendous amount of excellent discussion today about the issue of the process of approving those four judges who have been nominated to the circuit courts of appeals, and the whole issue of the filibuster and how filibusters work into the process of the Constitution and the management of this Senate. It has been appropriate. It has been good. It has been enlightening, I hope, to those who have taken the time to listen at whatever hour they happened to listen. I heard some extraordinary discussions which have been historical and legal and factual and informative. The question of whether or not a filibuster is appropriate is critical, and the constitutionality of using a filibuster relative to the Executive Calendar and the approval of judges is a very legitimate question in my mind. I think when you look at the Constitution and the language of the Founders, they were fairly precise people in how they designed this Senate when they decided to be precise. And on the issue of advise and consent, they were precise. They said it would take a supermajority to approve treaties, but they were silent on the issue of supermajority relative to justices, and, therefore, in my opinion, I think it is fairly evident that, as far as they were concerned, they expected a majority for the purposes of approving justices and, therefore, a filibuster is inconsistent with that. Really the filibuster, and the issue of the filibuster which has received so much appropriate attention today and which is obviously why we haven't been able to get to a vote, is systematic of the bigger issue, which is why is the opposition evolving relative to these justices? We have to remember--and I think it is important for people to focus on this because there have been a lot of charts and signs up talking about the number of judges approved--that we are dealing with the circuit court of appeals level of the judiciary. We are not dealing with district judges. The vast majority of the judges who are approved by this body, who are nominated by any President, are district court judges. They are the trial judges. What we are dealing with, however, is the people who take a look at what happened in the trial and decided whether law has been adequately applied to the trial and who basically interpret the Constitution and the laws of the land and have, therefore, a huge impact, obviously, on how our society functions. Fewer and fewer cases make it to the Supreme Court. More and more cases are decided on the issue of the question of their constitutionality, the implications of the broader law involved by the appeals level of our justice system. Therefore, when we look at the circuit court of appeals appointments, we are looking at an extraordinarily important position within the structure of our governance as a nation, a governance which is based on the issue of the protection of law. You can't have a democracy unless you have a structure of jurisprudence which is fair, honest, and applied consistently with principles developed over years. Therefore, to look at all the judges out there and say 168 or 200 or 5,000 have been approved is irrelevant to the question. The question is, what is the circuit court issue; what has happened with the circuit court? We know in the circuit court area there have only been 29 approved, and there are presently 4 pending who are subject to a filibuster right now, which means they can't get a majority vote. There are going to be two more, it looks like, who are going to be subject to that same filibuster, who won't get a majority vote, and that will be followed by, it appears, another six subject to a filibuster and, therefore, cannot get a majority vote. So we have 12 compared to 29. Twenty-nine have been approved. That is a very high percentage of the circuit court justices who have been basically blocked from getting an up-or-down vote as should apply under our form of structure, our Constitution, in my opinion. There has been a lot of discussion about that point. But what is the real implication? What is this fight over getting to a vote really about? It is about who these justices are and what they represent, because this is a new radicalization of the issue of judges and their appointment to the circuit court. The use of the filibuster at this time is symptomatic of that radicalization, and it is the radicalization of the nominating process which is the real issue at hand and on which the American people should be willing to focus. It appears--not appears--it has occurred now that a litmus test has been put in place for the purposes of approving members to the circuit court, a litmus test that really has no relationship to the judicial temperament, experience, fairness, or expertise of the nominee who has been brought forward. It is a litmus test totally outside the bounds of what has traditionally been the way in which we evaluate a justice nominated to the circuit court. It is a litmus test based on the justice's personal and religious views, not the justice's judicial actions. This is a huge departure from what has been the traditional method by which we have evaluated and confirmed judges in this country. First off, the litmus test as an approach is wrong. I was a Governor. I appointed judges. I never asked one judge what his or her view was on any issue. What I wanted to know about a justice I was going to appoint was: One, were they honest beyond a question of a doubt; two, were they smart; three, were they fair; and four, have they life experience that is going to give them some sensitivity toward the people who would be coming before their court. What their views were, I believed, was inappropriate to ask, but that was my position. Clearly, it is not the position of the minority in this body. The minority in this body decided there must be a litmus test which every justice appointed to the circuit court has to jump over. I could possibly accept that if that litmus test was tied to whether the justice was honest, whether the justice was fair, whether the justice was intelligent, or whether the justice had the life experience that was appropriate to go on the court. But that is not the litmus test. The litmus test now is whether or not the justice nominated to the position has an individual belief, not a judicial view, which is inconsistent with the view of one Member--just one Member--of this body. It is a staggering event representing a fundamental change in the way in which we appoint justices and nominate and confirm and evolve a judiciary. Under this philosophy, it is very likely that any person who comes to this body who subscribes to the Catholic faith and subscribes to it as laid down by the leader of the Catholic faith and by the catechisms of the Catholic faith, even though they may, as a justice, have made it very clear they do not allow that faith to determine their decisions-- and in one case we have a classic example of that, and that is Justice Pryor--that justice will not be allowed to be confirmed because his personal views--not his judicial actions, not his judicial review process--but his personal views will not have passed the litmus test simply because he happens to maintain a religious belief. That is an extraordinarily dangerous precedent to set in this body, and it will fundamentally change the character of this Nation over time if it is allowed to continue, to say nothing of the prejudice that it reflects. Since I have been in this body, I have voted for a lot of judges. When President Clinton was here, I voted for Justice Breyer to the Supreme Court. I voted for Justice Ruth Bader Ginsburg to the Supreme Court. These were two Justices I absolutely knew did not subscribe to my political philosophies, but they were honest, they were fair, they were smart, and they had life experience that was appropriate. Had I applied a litmus test coming from the other side of the aisle, I could have easily said no, and we could have filibustered those judges, but that was not appropriate. That is not the way to proceed. Unfortunately, my time is up. I would like to spend more time on this issue. Two of my fine colleagues wish to speak. I think this is the essence of the issue we are confronting today. The filibuster is symptomatic of it. The essence of it is we are radicalizing the manner in which we appoint justices, and we are allowing that radicalization to be based on personal beliefs rather than judicial action, which is fundamentally wrong. Mr. President, I now yield 5 minutes to the Senator from Nevada.

Mr. GREGG. Mr. President, I believe the regular order is that we now have half an hour on our side.

Mr. GREGG

Mr. GREGG. Mr. President, I am sorry to interfere, but that sign is clearly in violation of rule XVII and should be removed.

Mr. GREGG. Will the majority yield for a parliamentary inquiry? Isn't the sign across the aisle in violation of rule XVII?

Mr. GREGG

Mr. GREGG. Mr. President, on November 3, 2003, I filed Report 108-185 to accompany S. 1248, a bill to reauthorize the Individuals with Disabilities Education Act, and for other purposes. At the time the report was filed, the estimates by the Congressional Budget Office were not available. I ask unanimous consent that a complete copy of the CBO estimate be printed in the Record.

Mr. GREGG

Mr. GREGG. Will the Senator yield for a question? That is not a problem for myself. I would just like to know the approximate time.

Mr. GREGG. My question was going to be as to how much time the Senator is going to take?

Mr. GREGG. Will the Senator yield for a question?

Mr. GREGG

Mr. GREGG. Mr. President, the Senator mentioned the budget. As I recall, no budget was passed under the prior leadership in the prior year for the first time in--I don't know how long. Isn't it appropriate to pass a budget of the Government, and didn't the Republican leader pass that budget with a one-vote majority where it was not passed in the prior Congress?

Mr. GREGG. Will the Senator from Kentucky yield for a question?

Mr. GREGG

Mr. GREGG. Mr. President, I rise today to address an issue within the Appropriations Committee's jurisdiction, which is the subcommittee that I chair, the Subcommittee on Commerce, Justice, State, and the Judiciary, and a letter sent to the committee as a result of the mark which came out of the full committee markup process funding those major agencies. This subcommittee has very broad jurisdiction. It is an exciting committee, quite honestly, of which to be chairman. It has the Commerce Department, it has the Justice Department, it has Judiciary, the FTC, FCC, and a number of other major agencies, including State Department. As a result of the allocation process, which is a process by which the chairman of the full committee assigns each of the 13 subcommittees within the Appropriations Committee an amount of money they can spend on the various agencies which they have responsibility for, which amount is tied to the overall budget passed by the Senate, so that the overall budget, which I believe was $784 billion, is chopped into parts and each subcommittee gets a part of that budget which it then allocates to the various agencies for which it has responsibility. As a result of that process, this subcommittee, the Subcommittee on Commerce, Justice, State, and the Judiciary, was the only subcommittee which actually received less of an allocation. In other words, our number that we had for our agencies was less than what, first, the President requested by, I believe, $700 million, and, second, what the House had allocated to this same group of agencies by $900 million. Our subcommittee, when it was assigned our number, was almost $1 billion below the amount which was available to the House subcommittee and even more significantly below what the President had requested for these agencies. That was a responsibility I was willing to accept. I am happy to try to do my job around here. If my job involves being fiscally responsible, I am more than happy to do that. So when the chairman made this decision, which was a reasonable decision in light of the very stringent numbers he had to work with, I worked with them and produced a bill which met those numbers. Our bill came out at a funding level which was significantly below the House number. A number of the agencies which were impacted obviously were not happy about that. Most of them, however, were sophisticated enough to realize that in the end there was going to be a compromise between our committee and the House committee and that I suspect our number will move up closer to the House number and, therefore, closer to the President's number. Most of the other agencies were fairly responsible in their reaction to this, fairly reserved. For example, we received a letter from the Justice Department, which took many of the major cuts--not cuts but reductions in increases--that I had to make. This letter was a very matter of fact, accurate statement of where they thought they needed more money. I cannot argue with their position. In fact, in many ways, if I have more money as we move down the road, I will address those concerns very aggressively: for example, in the areas of the FBI, ATF, DEA, and general operations of the Justice Department. These were reasonable objections. They disagreed with our funding levels, but the Attorney General understood that we had a problem. Then we received a letter from the State Department. Now, the State Department is supposed to be diplomatic. I believe that should be one of their skills. This was not a diplomatic letter. It was excessive, inaccurate, and inflammatory. It essentially attacked the Appropriations Committee and the subcommittee in terms which I thought were grossly overstated and inappropriate. In it, the Department questioned our commitment to national security, questioned our commitment to the State Department, and then went on to raise specific problems with the bill that were not dollar related, for the most part, but were policy related, many of which were actually policy initiatives that the State Department knew or had to know were inaccurate. They based an inflammatory letter on facts which were wrong. I am going to go through that letter, point by point, and address those issues. I am not going to address the overall funding issue too much because this gets into my allocation, the allocation we received, and down the road we will be able to address that. Down the road, we will be able to address that. But that was not really the essence of this letter. This letter was a very vitriolic attack on the Appropriations Committee, regrettably, by the Secretary of State, signed by the Secretary of State, and I think it has to be responded to. I am going to try to do it in a matter-of-fact way. I am not going to raise my language to the level he raised his because I think his level was inappropriate and extraordinarily undiplomatic. But let me pursue the specifics. The Department's--when I say ``Department,'' I am referring, of course, to the State Department. The Department's appeal letter criticizes the bill for not providing full funding for the Diplomatic Readiness Initiative. The Diplomatic Readiness Initiative is the State Department's plan to hire 1,158 new Foreign Service officers over 3 years. The $97 million requested in fiscal year 2004 represents the third and final year of funding for this unprecedented hiring surge. The Department's target levels, both in terms of funding and personnel, for the Diplomatic Readiness Initiative were arrived at in a rather arbitrary way, in our opinion. State never undertook a comprehensive review to determine where and how many additional staff might be needed. In fiscal year 2002, the committee asked the Department to provide justification for the requested 1,158 new hires. The committee repeated that request, and the request went unanswered. The committee, this year, asked the State Department to explain where the 399 new Foreign Service officers, requested in fiscal year 2004, would be stationed--What bureaus? What embassies?--a fairly reasonable request from the appropriations committee charged with protecting the pocketbooks of American taxpayers. The State Department could not answer the question. If any internal review process had taken place to determine the proper personnel levels for overseas posts, the Department would have easily been able to tell the committee where these new FSOs would be placed, but they could not. The problem concerning the Diplomatic Readiness Initiative goes hand in hand with the issue of right-sizing. ``Right-sizing'' refers to the configuration of U.S. Government overseas personnel to the minimum necessary to support national interests. According to the General Accounting Office--this is not our committee--but according to a General Accounting Office report, the State Department ``has no comprehensive process in place for developing the staffing projections that are essential to the right-sizing process.'' In its appeal letter, the Department states that this claim is ``no longer accurate.'' But the Department's very use of the words ``no longer'' is an admission it did not, in fact, have a right-sizing process in place when the Diplomatic Readiness Initiative was put forward. In the absence of any indicators that State has undertaken right- sizing on its own, the committee decided to include two provisions that would compel the State Department to right-size downward, hopefully, two posts in Western Europe. For the sake of argument, however, let us assume that State was, in fact, able to justify its Diplomatic Readiness Initiative requests and that it did have an effective right-sizing program in place. The Department's letter claims that the bill provides only $67.4 million for the Diplomatic Hiring Initiative. That simply is not true. It is not accurate, like much else in this letter. The Senate report clearly states that $90 million is available for the Diplomatic Readiness Initiative. The State Department is dissatisfied because the committee considers its request for 68 new consular officers to be part of the diplomatic readiness, not an add-on. In fiscal year 2004, the State Department requested 68 new consular officers in addition to the final tranches of 399 new Foreign Service Officers. State claims the increase is necessary due to unanticipated personnel needs. The last-minute addition of the 68 new FTEs, at a cost of $22.6 million, confirms the committee's suspicion that the Department, in fact, had not undertaken any meaningful workforce planning. The second point the Department makes here: the Department's appeal letter criticizes the bill for not providing any funding for the Bureau of Legislative Affairs, or ``H'', as it is commonly known. For the sake of full disclosure, it should be noted that the Bureau of Legislative Affairs wrote the letter that was sent to us by the State Department, which I think, on its face, should explain why we zeroed it out. But I will go into more specifics. The House bill contains language capping both the funding and the personnel of that Bureau. Why would both the House and the Senate Appropriations Committees move to limit or, in our case, strike the office's funding? The reality is that both House and Senate appropriators are unhappy with the performance of this office and are unconvinced of its necessity. There are currently 69 full-time equivalents at H at an annual cost of $7.7 million. The Senate CJS Subcommittee works almost exclusively with the State Department's budget office, not the Bureau of Legislative Affairs. In the interest of fairness to my House and Senate colleagues who might utilize the H Department, I would consider reducing the Bureau of Legislative Affairs' budget by one-quarter to account for the services that are not provided to our subcommittee but for which we seem to be paying. And possibly the House will take the same position. That would allow, of course, H to be able to work with the authorizing committees and other Congressional offices. So we are willing to adjust there. But I think people can understand why, after I complete my analysis of this letter, this Bureau does not merit funding from the committee. The Department appeal letter also criticizes the bill for not providing any funding for the Office of Legal Adviser, or ``L'', as it is commonly known. As the letter points out, the committee certainly does not believe the State Department's legal needs should go uncovered. Situations will undoubtedly arise that will require a legal response from the Department of State. This is why the committee would likely have moved in conference to restore at least a portion of this office's funding, and we will do that. The committee did not provide funding for L in fiscal year 2004 to make a point as to the failures of L's performance in a number of areas. This office has several times overstepped its bounds. The Office of Legal Adviser is responsible for providing timely legal advice and support to the Secretary of State. However, L regularly inserts itself into the policymaking process, even to the point of telling the Congress what the Congress does and does not intend by the laws we pass. With all due respect to the good people who work at L, Senator Hollings and I and other members of the Appropriations Committee really are not interested in having State Department lawyers tell us what we meant when we passed laws. This is exactly, however, what L did when Senator Hollings tried to pass legislation allowing Americans who were held hostage during the Iranian hostage crisis to file claims for damages against Iran. Whether my colleagues agree or disagree with Senator Hollings' position--and it has been a position of some controversy--on this particular issue there can be no disagreement over the Office of Legal Adviser's slick lobbying tactics and outright refusal to follow the congressional direction. Another source of frustration is L's past attempts to withhold information from the committee. An April, 2003, Department of State Inspector General's report described the case of a State Department employee who was committing fraud against the Department. The IG report did not clarify the outcome of the case, stating only that the employee had been recommended for removal. As an oversight responsibility, we inquired as to whether the person had been removed or not. L directed the Legislative Affairs Office not to provide this information to the committee on the basis that it had Privacy Act protection. I believe the American people, and certainly the appropriations committee, have a right to know whether or not a person accused of fraud by the IG has been removed from that office. The American people have a right to know whether an employee caught stealing their tax dollars remains on the Federal payroll. So, the committee reiterated its request. At that point, the State Department told the committee what we already knew to be true: that the Privacy Act contains a statutory waiver for congressional committees of jurisdiction. State then told the committee it could have the information only if it could produce a letter of request. However, the statutory waiver contains no mention of a letter. We refused to sign a letter and gave the State Department a deadline to make the information available to the committee. This was many months ago, and we are still waiting for the information. A congressional committee of jurisdiction should not be at the mercy of the State Department's legal department and its internal rules for access to information. Such rules are obviously intended to withhold information from the American people that could potentially embarrass the State Department. It is regrettable that the Office of Legal Adviser can so flagrantly defy the wisdom, the spirit, and the intent of a waiver for congressional committees of jurisdiction. The Department's appeal letter further criticizes the bill for not providing funding for the Office of Brazilian/Southern Cone Affairs and the Deputy Assistant Secretary for that office. There is a very straightforward reason for the committee's decision not to provide funding for this office. In 2002, the Department decided to consolidate the Rio de Janeiro, Brazil, operations into leased facilities rather than construct a new consulate building. This decision left the Department holding several properties in Rio de Janeiro that it could not sell due to the 1991 Brazilian law that requires individuals and businesses to be current on their Social Security payments to the Government of Brazil before they can legally transfer property title. In 1996, the State Department discontinued the payment of employer contributions into the Brazilian Social Security system for foreign service national employees because the Department deemed the Brazilian Social Security system to be fiscally unsound. The Department deemed it to be fiscally unsound. The Department set up its own pension system for the FSNs. The result of this is that the United States now owes approximately $10 million in arrears to the Government of Brazil. The State Department had in the past refused to pay the arrears. The committee supported its decision not to do so because we had already paid that $10 million in two accounts to benefit these employers. However, when the Department eventually needed to dispose of the property in Rio de Janeiro, it requested a reprogramming of $10 million to repay the arrears. The committee denied the Department's request, citing the principle of the matter and the fact that American taxpayers were, in essence, being asked to pay twice for these FSN pensions. Shortly thereafter, it was brought to the committee's attention that certain officials from the Bureau of Western Hemisphere Affairs were trying to arrange a property swap with the Government of Brazil. In other words, the committee specifically told the Department not to pay back the arrears, and the Bureau sought a way around the committee's denial of the funding. In light of these inexcusable actions and in light of the low fiscal year 2004 allocation, the committee decided that the appropriate funding level for the Office of Brazilian/Southern Cone Affairs was zero. The bill makes it clear that even the Department of State is accountable for the expenditure of the American taxpayers' dollars. The Department's appeal letter further criticizes the bill for not providing funds for the Bureau of Oceans and International Environmental and Scientific Affairs. It is the responsibility of this bureau to promote U.S. interests in oceans, manage fish resources, protect marine environment through treaties, and promote U.S. interests in the international management of fresh water, forests, hazardous chemicals, and the atmosphere. Why would anyone want to abolish an office with such an important portfolio? The answer is that OES is not really getting the job done. The people at OES are very skilled diplomats, but they are not using their talents to negotiate effective, forceful treaties on fisheries, forests, and the atmosphere. They are instead burning time and talent lobbying for more resources for themselves or trying to wriggle out of initiatives which Congress has asked them to undertake. For the record, the bill does not abolish the OES functions, as some have accused. The bill transfers all of the OES's oceans-related responsibilities to the National Oceanic and Atmospheric Administration. That seems reasonable. The bill does not reassign many of OES's other core functions, such as climate change, deforestation, et cetera. This is because the Commerce, Justice, State Subcommittee does not have jurisdiction over the agencies responsible for these activities. It is not our place to say that the EPA Administrator should negotiate climate change treaties on behalf of the United States since the State Department can't seem to manage to do it. The committee has received quiet praise from a range of groups, from industry to NGOs, on the elimination of this office. These groups share our frustration with the OES's inability, and sometimes unwillingness, to do its job in what we consider to be an effective manner and have congratulated the committee on its decision to move OES functions to agencies that actually care about and have expertise in issues such as endangered turtles, lumber imports, and global climate change. What is the root of the committee's frustration with the OES? OES has contravened statutory requirements to seek binding international treaties on endangered sea turtles and shark finning. On trade issues, OES has consistently pressed a U.S. position that sacrifices the environmental and conservation agenda. It is important to note that things were no better under prior administrations. Finally, there is widespread frustration with the lack of expertise and institutional knowledge of the OES negotiators due to State's policy of constantly rotating Foreign Service officers. Simply put, the committee got tired of being ignored by OES, and the Congress should also be tired of this. This year, the committee decided to take action. The action taken was constructive. It reassigned these important functions to people who actually understand the issues and who are willing to pursue them. Further, the State Department's appeal letter objects to the bill's inclusion of $52 million for the Center for Anti-Terrorism and Security Training. The CAST facility would allow the Department to consolidate training for the Bureau of Diplomatic Security and the Anti-Terrorism Assistance Program. The Department requested $52 million for this project in fiscal year 2003. The House objected, and the Department ultimately did not receive the funding last year. In light of this, the committee included the $52 million in fiscal year 2004. It was assumed that if the Department had requested the funds in fiscal year 2003 it would then want them to be included in the fiscal year 2004 funding. However, the Department's appeal letter objects to their inclusion this year. The State Department's inconsistency on this matter leads one to seriously question the processes by which it determines its budgetary priorities. In my humble opinion, they do need a center where they are able to train their Bureau of Diplomatic Security people, who have expanded radically in number over the last few years. State's inconsistency on this matter is hard to understand. State's complaints about the decisions of this committee are rather bold, given this inconsistency. The Department's appeal letter next objects to the bill's inclusion of $40 million for security enhancements for so-called soft targets. These funds are intended to be used to pay for security enhancements such as guards, shatter-resistant windows, emergency warning systems, and bollards at staff housing and American schools overseas. I started this initiative in the fiscal year 2003 budget. A total $15 million was included in that bill, along with language drawing particular attention to the security needs of our overseas schools. Or at least I thought $15 million was included in the bill. The State Department has recently informed the committee that it has chosen to interpret this figure as $15 million over 3 years, not $15 million for each of 3 years as the committee intended. And since the actual funding level for the soft target initiative will fall $10 million below what was envisioned for fiscal year 2003, the fiscal year 2004 level will have to be at least $25 million to meet the goal. The Department has argued that $40 million is too much for this program. It is the committee's position that this is the right amount, especially since the Department appears to be playing budget games with this important initiative. It is extremely disheartening, in light of the pledges given to us by leadership at the State Department, that they would now try to decrease this funding to protect soft targets. Some of us are personally very committed to making sure that, when our Foreign Service people go overseas and take their families with them, we give those families reasonable protection. It appears the Department, perhaps, is not. The Department's appeal letter objects to the bill's inclusion of language limiting the number of personnel working in U.S. Embassies in Paris, France, and Berlin, Germany. The letter states: ``This micro- management circumvents the Department's right-sizing plan process''. The bill includes caps on personnel because, as discussed earlier, the Department has no right-sizing process in place. And our Embassies in Paris and Berlin are a living--and growing--testament to this. I addressed this problem of right-sizing earlier, and I will not belabor the point. There are a couple of factors that led the committee to choose Paris and Berlin as the places to begin this mandatory right-sizing. The U.S. Embassy in Paris has grown so large that the post now occupies several annexes throughout the city in addition to the primary Embassy building. Recently, the Department requested to utilize $25 million to renovate a building into which personnel from other annexes could be consolidated. As if the $25 million price tag weren't bad enough, shortly after State made this request the committee discovered that the roof of the building had collapsed. State continued to push for approval of the funds to renovate the dilapidated building--right up until both the House and Senate Appropriations subcommittees denied this request. As far as Berlin is concerned, the committee had originally been told that the new embassy building planned for the historic Pariser Platz site would have to be smaller than normal, due to the small size of the property--about 1.5 acres. This is how State justified to the committee the cost of purchasing and renovating an ample new consular compound in Frankfurt, Germany. State's rationale was--and the committee agreed-- that if the embassy building in Berlin had to be smaller than necessary, some personnel could be transferred to what was to become a ``regional hub'' in Frankfurt. A little under a year ago, the State Department informed the committee that the Berlin building would actually be much larger than normal. In fact, the new embassy building envisioned for Berlin is a 24,000 square meter colossus, what the Department terms a ``special project.'' The result is that we have an enormous ``regional hub'' compound in Frankfurt and a supersized embassy building in Berlin. The convoluted history of the Berlin project leads one to question whether the State Department takes the concept of right-sizing seriously at all. The Department's letter also criticizes the bill for reducing the funding level of the Berlin project by $70 million. The Berlin project, unlike all of the other capital projects requested in fiscal year 2004, is not driven by security needs. The bill redirects this $70 million to construction of a new consulate building in Karachi, Pakistan. The design/construction phase for Karachi was not scheduled to begin until fiscal year 2005. However, given the current security situation in Pakistan, the committee felt it should begin as soon as possible. Employees of the U.S. Consulate General in Karachi have come under attack on four separate occasions during the last decade. On two such occasions, the consulate building itself was attacked. The most recent attack occurred in February, 2003, when a gunman opened fire on the local police assigned to the consulate. In light of this, the committee decided that our consulate in Karachi was in urgent need of reconstruction. Shrinking the size of an already-too-large building in Berlin, Germany, seemed like a very reasonable price to pay for a badly needed security construction project in Pakistan. It is the committee's policy to address the security needs of our embassies and consulates overseas before constructing buildings that are desirable for historical and cultural reasons. The Department's appeal letter criticizes the bill for not providing full funding for the U.S. payment to the United Nations. The difference between the requested amount of $1 billion and the recommendation of $922 million can be explained by the committee's decision not to provide the requested funds for the United States to rejoin UNESCO. However, the Department may not be aware of this, but we have had significant discussions with the White House and members of the administration, and I fully expect we will be funding UNESCO. Another factor contributing to the ``cut'' to this account was the committee's decision not to provide the funds for the United States share of the costs of the U.N. Human Rights Commission. The House bill contains a provision that would withhold funds for this U.N. body as well. The U.N. Human Rights Commission is notorious because it is chaired by Libya and boasts such members as Sudan, Cuba, and Zimbabwe. Human Rights Watch this year called the U.N. Human Rights Commission: ``An abusers club of governments hostile to human rights.'' The U.N. Human Rights Commission ignores the real human rights violators. No resolution in the history of the commission has ever been passed on states such as Syria, China, Saudi Arabia or Zimbabwe. The commission has not addressed gross and systematic human rights abuses in countries such as Bahrain, Chad, Liberia, Malawi, Mali, Saudi Arabia, Syria, United Arab Emirates, Yemen, and Zimbabwe. The Commission is a platform for Israel-bashing. It has spent more time on Israel than any other country. Eleven percent of its total substantive meeting time has been spent on Israel alone, while 24 percent of its time has been spent on all other U.N. states combined. Lastly and most alarmingly, the U.N. Human Rights Commission is being used as a forum for the expression of values and positions that run completely counter to America's own. One member state objected to the inclusion of language calling cross amputation ``cruel, inhuman and degrading treatment'' on the grounds that it was an offense to all Muslim countries. The Commission has also adopted a resolution affirming the legitimacy of ``all available means,'' including suicide- bombing, ``to resist foreign occupation and for self-determination.'' At one meeting, the Libyan Chairman shouted that the U.S. war against terror showed that the U.S. ``despised humanity.'' Should we stand by as American tax dollars are allowed to flow to such an organization? The House of Representatives doesn't think so. The Senate Appropriations Committee didn't think so. Apparently, the Department of State thinks so. The last portion of the ``cut'' to this account is explained by the bill's discontinuation of funding for a number of the smaller international organizations. In the past, the committee has directed the State Department to review the list of smaller international organizations to which the United States belongs to determine which of these may no longer be worthwhile for the United States. State has not done so. This year, the committee began making eliminations. The committee gave the State Department the chance to review the list itself, but it did not act. The Department's appeal letter criticizes the bill for not providing full funding for the U.S. share of the cost of United Nations peacekeeping missions. The bill provides only $483 million for peacekeeping while the request was $550 million. This, the State Department correctly points out, is a difference of $67 million. What the Department's appeal letter does not acknowledge is that, on September 30, 2003, the committee approved a reprogramming providing that $100 million in this account would be carried forward to fiscal year 2004. The result of this? State is not going to have a $67 million shortfall, it is going to have a $33 million windfall. The State Department knew this $100 million in carryover would be available when they wrote their appeal letter. They knew that the Senate CJS bill assumed that ample carryover funding would be available. This is the most egregious part of the Department's appeal letter. It is an outright fabrication. But let's turn to the real issues. The report accompanying the fiscal year 2004 bill directs the International Criminal Tribunal for Rwanda to complete its work by 2004 and the International Criminal Tribunal for the Former Yugoslavia to complete its work by 2006. Both ICTY and ICTR have been criticized for being slow and unprofessional, for having inadequate staff, for the passivity of their judges, and for their insufficient oversight of expenditures and employees. The Department of State itself has criticized these tribunals for their shortcomings. For these reasons, the Senate report includes language urging the U.N. to develop an exit strategy for these Tribunals. The committee's disappointment in the performance of the Yugoslavia and Rwanda Tribunals had little to do, however, with the level of funding they received (about one-third of the requested amount). This funding decision had more to do with the fact that the bills for these 2 Tribunals--that is, the amount the U.N. assesses to the United States each year--have been much lower than anticipated for the past few years. The State Department has, for several years, budgeted about twice what it really needed to pay the U.S.'s bills for the Yugoslavia and Rwanda Tribunals. In light of this year's low allocation, we decided to hold back these funds and use them elsewhere. State recently estimated that the bills for fiscal year 2004 would come in at just around the requested level. The committee will likely adjust this level upwards in conference, since it is not interested in creating new U.S. arrears without a compelling reason. But it is important to note that the low Senate level for the Tribunals resulted from State's own budgetary ineptitude. State was quick to lash out at the committee for not providing full funding for the Yugoslavia and Rwanda War Crimes Tribunals. Yet, State itself is withholding funds for the Special Court for Sierra Leone. The Special Court is assigned the task of prosecuting those who committed atrocities during Sierra Leone's gruesome civil war. In fiscal year 2003, Congress appropriated $10 million for the Special Court. State refused to provide the entire $10 million, in a blatant disregard of congressional intent. The Chief Prosecutor for Sierra Leone has told the committee that without the additional $5 million, the Special Court may have to shut down as early as February. The Department has criticized this bill for trimming down what, in past years, was a grossly inflated budget for the U.N.-run tribunals while denies the United States- and British-led tribunals its promised funding. This inconsistency is worrisome. The Department also objects to report language under peacekeeping that directs the United Nations to develop an exit strategy for the U.N. Peacekeeping force in Cyprus. The reason for this language is simple. It is not fair for U.S. taxpayers to have to pay for missions in countries that are on the cusp of joining the European Union. The last two years have seen the U.S. take on tremendous new global responsibilities, with Afghanistan and Iraq representing the largest. The U.S. cannot afford to keep taking on new missions if its existing missions never go away. The U.N. mission to Cyprus began in 1964, 39 years ago. The State Department needs to use the U.S.' voice in the Security Council to ensure that U.N. peacekeeping missions are held to some sort of reasonable time frame. The Department also objects to the bill's failure to include language allowing it to carry over 15 percent of the fiscal year 2004 peacekeeping appropriations into fiscal year 2005. As I mentioned earlier, the peacekeeping bills have been coming in much lower than expected. In fiscal year 2004, the Department's peacekeeping appropriation was $167 million above what it actually needed. Assuming this trend continues, the Department's request to carry over 15 percent of its peacekeeping appropriations is the equivalent of an advanced appropriation, something which the subcommittee of which I am chairman has tried to avoid. As a rule, the committee does not provide advanced appropriations since they take funding decisions away from the elected representatives of the people and hand it over to the agencies. This is simply a matter of policy and proper management. The Department's appeal letter further criticizes the bill for not providing full funding for Educational and Cultural Exchanges, but the Department's appeal letter does not tell the whole story. In fiscal year 2004, the Office of Management and Budget decided to move the former Soviet exchange programs, at a cost of approximately $100 million, over to the Commerce-State-Justice Subcommittee from the Foreign Operations Subcommittee. This maneuver was intended to make room for the expanded Middle East exchange programs in the Foreign Operations budget. This was an OMB initiative. Whether or not one agrees that these programs belong in Commerce-Justice-State, there were simply not enough funds in the subcommittee's 302(b) allocation to absorb them. The committee has always generously supported the exchanges. They are one part of the State Department's public diplomacy program that consistently produces good results, but even the committee has to question whether, if the former Soviet exchanges are no longer a high priority area for the United States--which the administration's budget signals they are not--then their funding needs to be reduced and they need to be folded into an existing exchange program under Commerce- Justice-State. OMB and the State Department should be committed, as I am, to reprioritizing rather than simply adding more and programs. In any event, OMB should not act unilaterally, creating an impossible situation for the subcommittee given its low allocation, and then, with the State Department, write a letter complaining about it. The Department's appeal letter further objects to language in the bill designed to prevent the State Department from making a reprogramming request more than once. The committee decided to include this language after the Department requested to reprogram funding for the same project five times. In this particular instance, the committee denied the Department's request to utilize Commerce-Justice-State funding to construct two USAID annexes. The committee's position has always been that the Commerce-Justice-State Subcommittee should not have to build buildings for agencies over which it does not have any oversight. Seems reasonable to us. The USAID's operating budget does not fall under the jurisdiction of Commerce-Justice-State and, thus, this subcommittee has no way of ensuring that USAID is managing its funds wisely, that its requests for new buildings are legitimate, and that all of the personnel it places in these buildings are needed in those buildings. Moreover, separating USAID's building function from the oversight of its own appropriators-- the Foreign Operations Subcommittee--allows USAID to escape accountability for its capital program, which is not good budgeting procedure. The State Department apparently has failed to grasp this concept that when the committee says no it means no. The Department's appeal letter further objects to language in the bill requiring the Department to submit the U.N.'s budget along with its own budget to the committee. The regular dues of the United States to the U.N. are paid through the Commerce-Justice-State bill. In the fiscal year 2004, these dues will amount to $1 billion for the U.N. regular payments and $550 million for peacekeeping, for a total of $1.5 billion of American tax dollars. This amount represents almost 20 percent of the entire State Department account, yet none of these funds--none of these funds--are justified in any meaningful way or any meaningful detail to the committee. All this bill language does is allow the committee to see for what this $1.5 billion is being used. The Department's appeal letter says it would be ``impractical'' for State to submit the U.N.'s budget to the subcommittee. I don't see why. Furthermore, the Department's letter states that the fact the committee has requested to receive the U.N.'s budget ``suggests that the committee would intend to exercise oversight over the U.N. budget to the same degree that it does over other accounts in the President's budget request.'' This, of course, is preposterous and inaccurate. The committee could never exercise this kind of oversight over the U.N. budget. The U.N. is an independent international organization. The committee can't make the U.N. do anything. Only the Security Council can make the U.N. do something. All this language does is ensure the committee is able to account for the expenditures of U.S. tax dollars. The Appropriations Committee is given the responsibility by the Constitution and by the taxpayers of the United States to make sure their tax dollars are being spent effectively and to know where their tax dollars are going. It seems reasonable that we should at least get an accounting from the U.N. of how $1.5 billion is being spent, and that is all we are seeking. The State Department's appeal letter further objects to language included in the bill that provides for an automatic transfer of funding in the event of a visa fee shortfall. The Department's Border Security Program--essentially its consular operations--is funded exclusively from revenue generated through the Machine Readable Visa Fee Program. Since September 11, the number of visa applications to the United States has declined dramatically. This has created a shortfall in excess of $100 million in the Department's Border Security Program. This has obvious national security implications. The Department has been aware of this problem for more than a year now. The committee has asked the Department several times to propose a comprehensive solution to this problem. In the absence of a solution, the committee vowed to transfer funds from the Department's main operating account to cover the shortfall. Consequently, the committee included language in the fiscal year 2004 bill that provides just such a safety mechanism--an automatic transfer of funds--to ensure that funding shortfalls do not disrupt the Department's critical Border Security operation. For the record, the committee has still not received a proposal from the State Department. The Department's current ad hoc system for addressing funding shortfalls in the Border Security Program is unacceptable. The Department leaves the committee little choice but to insist that this language be carried forward in the report. The Department's appeal letter objects to language included in the bill that would withhold funds for any U.N. peacekeeping mission that places U.S. troops under the command of a foreign national. This language is part of a larger debate over the International Criminal Court. Identical language was included in last year's Commerce-Justice- State conference report, which passed both the Senate and the House. The House included identical language this year. Congress has spoken on this matter and the matter rests as it is. Why the State Department would write such an inflammatory letter now claiming that this language is inappropriate is beyond my understanding, especially given the history of this language. The Department's appeal letter objects to the language included in the report requiring the Department to demonstrate that consolidation of its payroll system would result in a savings for the American taxpayer. What an outrageous idea that we should ask the State Department to prove that something they are planning will save money, and then actually have them show us how it does save money. There is also report language requiring the Department to submit a reprogramming before it obligates any funding for payroll consolidation. Last January, the Office of Management and Budget announced an initiative to consolidate the Federal payroll system. It is estimated that this consolidation will reduce the number of agencies processing employee checks from 22 to 4, which could save the taxpayers up to $1 billion over the next 10 years. The committee is very supportive of this initiative. However, State's payroll needs are very different from the payroll needs of domestic agencies. The State Department currently pays over 25,000 Americans both domestically and overseas and over 35,000 local national employees in 180 different countries biweekly in local currencies. The purpose of this report language is to ensure that if any payroll consolidation takes place at the State Department, that State's unique needs are met. The committee has a right to exercise oversight over these funds. In fact, it is our obligation to do so, and I would think that State would encourage it rather than resist it. The Department's appeal letter objects to report language that requires the Department to move the Office of Foreign Missions out of the Bureau of Diplomatic Security to the Bureau of Management. The Office of Foreign Missions was created to review and control the operations of foreign missions in the United States and to administer the benefits available to them. The Office of Foreign Missions was originally invented as a stand-alone office under the Secretary of State. In 1996, however, the office was moved to the Bureau of Diplomatic Security. The person who was then the director of the office took OFM with him when he was appointed head of Diplomatic Security. The committee's reason for including this report language is straightforward. We have talked to several foreign ambassadors who say the Office of Foreign Missions acts as though its primary mission is to police foreign missions rather than assist them. We have even had foreign diplomats tell us that they feel as though the Office of Foreign Missions treats them like ``criminals''. This is unacceptable. I am certain this penchant for heavyhandedness can be explained by the Office of Foreign Missions' being housed in the Department's security branch. For the second year in a row, the committee has asked the Department to consider moving the office back. The language was ignored the first time and hopefully we can get it to work this time. The appeal letter objects to report language that directs the Department not to grant visas to any person caught trafficking in looted Iraqi antiquities. It objects to that language. This language says, essentially, that anyone found to be responsible for looting and damaging Iraq's historical and culturally significant works is barred from receiving a U.S. visa. U.S. visas are not a right. They are a privilege. Any person who attempts to profit from the misfortune of the Iraqi people should lose this privilege. Why the State Department opposes this is beyond us. It is especially disconcerting that the Department objects to this language in the context of an inflammatory letter that questions this committee's commitment to national security. The appeal letter objects to report language requiring that children over the age of 1 be present for the adjudication of a U.S. passport. This minor change in Department policy, though admittedly an inconvenience for passport applicants, would help prevent international child abductions. Currently, State Department regulations do not require children under the age of 14 to appear personally when passport applications are made on their behalf. As a result, passport fraud involving the substitution of photographs of one child for another is regrettably common. The committee included this language following a Department of State Inspector General's report that recommended precisely this policy change. By law, State Department bureaus are required to respond to the recommendations contained in an Inspector General's report. On July 8, 2003, the Assistant Secretary of State for Consular Affairs sent a memo to the Inspector General stating that she not only concurs with the IG's recommendation, but is implementing it. This is good news. But one wonders why State is attacking us for suggesting it in our bill. Included in the appeal letter is an objection to report language directing the Department to construct a new office building in Kingston, Jamaica, instead of utilizing an existing building for both post housing and embassy functions. The committee was under the impression this plan also was already being implemented by the Bureau of Overseas Building Operations. Perhaps we could get some further clarification. It would have been better if the Department had engaged us in a constructive dialogue, rather than sending such a letter. The appeal letter objects to the report language requiring the U.S. Representative to the Organization of Economic Cooperation and Development, OECD, to submit OECD reports to the committee prior to their release. OECD already submits these reports to its member states. The State Department, on behalf of the United States, is responsible for approving these reports before they are released. Last year, OECD released a report that dealt with a particular U.S. domestic issue which at the time was being debated in the Congress. The OECD report was not intended to coincide with the congressional action on the particular matter. However, the release of the report nevertheless unduly influenced congressional debate on the matter. Such scenarios must be prevented in the future and this is precisely what this report language seeks to address. The committee's position on this matter appears to have been substantiated by the recent release of an OECD report that made recommendations on another politically sensitive issue currently being debated by the Congress: vouchers. While in this instance the OECD recommendation was in line with my own views and position, I suspect the opponents of my position, or others who do not agree with the approach to choice and vouchers, might take issue with the OECD's timing. The report language merely states the Congress too shall have opportunities to review the list of OECD reports before they are released. State has twice failed to exercise discretion that should have led it to disapprove reports that inappropriately influenced congressional action. This report language would try to prevent that sort of failure on their part in the future. That is a fairly comprehensive response to almost every point in this letter, except the overall funding levels, which brings me back to the language of the original letter. This is the language which the Secretary of State has directed at the Senate and the Senate Appropriations Committee. He says in this letter, which I think I have responded to in a very factual and reasonably understated way, that the bill passed by the full Appropriations Committee would adversely affect U.S. foreign policy and national security interests, undermine the management of the Department, is unconstitutional, misstates the legal requirements of the reprogramming process, and raises separation of powers concerns. I think it is excessive when the Secretary of State and his Department wave the bloody shirt of national security at the Senate as a way of attacking a bill they object to for policy and funding reasons. To say that I and other members of the Appropriations Committee would adversely affect national security interests at a time like this is an attack that is highly inappropriate, certainly not diplomatic, and that is inconsistent with the facts. As I have pointed out, the letter State has sent us is inaccurate in many areas. It is a disagreement on policies which are reasonable and should have been debated in a reasonable context. So unlike the Justice Department, which sent us a very matter-of-fact and I thought appropriate, thoughtful letter outlining what their concerns were, and unlike the Commerce Department, which was pretty happy with our bill, the State Department has decided to raise this to a higher level of antipathy. I think it is a mistake, and I think the record will speak for itself when this letter is reviewed in the context of the facts as I have outlined them. I yield the floor, and I suggest the absence of a quorum.

Mr. GREGG. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GREGG

Mr. GREGG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. GREGG

Mr. GREGG. Mr. President, I would ask that--

Mr. GREGG. I move the item be divided. I ask for a division. I ask that the division be on subsection (d).

Mr. GREGG. Is this motion divisible?

Mr. GREGG. Parliamentary inquiry.

Mr. GREGG. Mr. President, I have a parliamentary inquiry.

Mr. GREGG. Yes. My point is, on page 3, line 8, section (d), I ask that the motion be divided and that the motion be a separate motion on that section and everything that follows it within section (d).

Mr. GREGG. All items after subsection (d)--page 3, line 8--be deleted, the question be divided on that point.

Mr. GREGG

Mr. GREGG. Mr. President, I thank the Senator from Massachusetts for his aggressive and effective leadership on this issue. I also thank the Democratic leader, who played a major role in this, Senator Harkin, who has been working on this issue for many years, and, of course, Senator Frist, also, because he has made this a priority and that is why we are on the floor. This is an issue in which he obviously has a personal interest, with his medical background. We should also thank one of the groups that really energized this initiative of making lives better through developing the human genome and that is the folks at NIH, led by Dr. Francis Collins. They are the ones who are going to take this knowledge and disseminate it in a way that makes it available to the health community generally and, as a result, improve the lives of literally millions of Americans and potentially tens of millions of people around the world. This is truly an extraordinary breakthrough in science, but it is important that it be used right and it is important that it not be used in a way that may harm individuals' economic well-being or their capacity to get health insurance. That is why this legislation, at the beginning, is so important. By having it in place, we will be able to energize even more research and more use of the genetic information that is available through science today. Mr. President, I believe we are ready to vote. I yield back the remainder of my time.

Mr. GREGG. I yield 3 minutes to the Senator from Maine.

Mr. GREGG. Mr. President, I yield myself such time as I may consume. This is important legislation. It has been 6 years in gestation. It is legislation which is not only important to our research community but, more importantly, it is a major piece of civil rights legislation in that it protects people in their employment and in getting health care. Essentially, we are in a new world in the community of health care where you will actually be able to go to your doctor someday not too long from now, and probably in some instances even today, and he will be able to tell you some of the most severe illnesses projected for your lifetime. That is called genetic information. It is great medical news that we have moved this far, and there is a lot that will occur that is positive as a result. The other side of the coin is this information could be used arbitrarily, unsuspectingly, or even intentionally to harm your employment or your capacity to get health insurance. This legislation corrects that concern. It makes it possible to continue genetics research without people having to be concerned about the way their personal genetics information may be used. That is why it is important. A lot of folks have worked very hard on this bill. Senator Kennedy has worked tirelessly to pass it. Senator Daschle has worked aggressively to pass it. Senator Jeffords, when he was chairman of the committee, worked very hard. On our side of the aisle, Senator Enzi has made a major contribution in the area of employment, and Senator Snowe was one of the originators of the initiative. At this point, I reserve the remainder of my time and yield the floor.

Mr. GREGG. Mr. President, I ask for the yeas and nays.